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CACV 55/2022
[2022] HKCA 682
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 55 OF 2022
(ON APPEAL FROM HCAL 255 OF 2019)
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| RE: |
SUKRAN HABIBUR RAHMAN |
Applicant |
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Before: Hon Au JA and Lisa Wong J in Court
Date of Judgment: 16 May 2022
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J U D G M E N T
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Hon Au JA (giving judgment of the court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 25 January 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 286).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 January 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
3. The appeal was listed to be heard on 26 April 2022. The applicant was directed to lodge two sets of skeleton argument on or before 29 March 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 4 March 2022.
4. On 30 March 2022, this Court further directed that unless the applicant lodged with the Court two sets of skeleton argument on or before 14 April 2022, the appeal hearing fixed on 26 April 2022 at 10:00am will be vacated with the appeal being determined on paper without further directions. The same was also communicated to the applicant by letter on the same day. However, the applicant did not lodge any skeleton argument in support of his appeal.
5. The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1. Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants. Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. In view of the heavy demand on the Court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument. Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.
6. As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.
Background
7. The applicant is a national of Bangladesh. He claimed that he had entered Hong Kong illegally in May 2015. On 21 May 2015, he surrendered to the Immigration Department. On 27 August 2015, he made a non-refoulement claim on the basis that his life would be in danger due to the threats posed by people from Awami League and the police due to political dispute. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [17] of the Leave Decision.
8. By a Notice of Decision dated 8 February 2018, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.
9. On 22 February 2018, the applicant appealed against the Director’s Decision to the Board. The applicant attended the hearing before the Board on 13 September 2018 (“the Board’s Hearing”) and gave evidence with the assistance of an interpreter qualified in the Bengali and English languages. The Board dismissed his appeal on 14 January 2019. The Board considered that he was not a reliable witness as his evidence was inconsistent, vague and confused in nature and had concerns about the reliability of his responses. Having assessed the evidence, the Board considered that his evidence was embellished, exaggerated and fabricated in part to create a claim to be owed protection under the applicable grounds. The Board did not accept that the applicant was ever a person of adverse interest to the Awami League or its supporters or was ever subjected to adverse treatment in Bangladesh by the police by the instigation of his alleged enemies. The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.
The Leave Decision
10. On 28 January 2019, the applicant filed his Form 86 and supporting affirmation applying for leave to apply for judicial review against the Board’s Decision. In his Form 86, the applicant contended that the Board was in breach of procedural fairness and had unlawfully fettered his discretion by refusing his appeal. The applicant also claimed that he was not given an opportunity to make submissions before the Board and was not invited to make written submission. He further claimed that the Board had significantly relied on the source of news which was not officially recognised or was simply hearsay. In his supporting affirmation, he alleged that the Board’s Hearing had been unfair given the lack of language assistance and that the oral hearing bundle was not provided earlier and was without interpretation. He was therefore confused in terms of what was happening during the Board’s Hearing.
11. On 4 January 2022, the applicant attended an oral hearing before the Deputy Judge. A Bengali interpreter was also present to provide language assistance.
12. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [26] ‑ [49] of the Leave Decision and will not be repeated here. In gist, the Deputy Judge considered that the applicant’s complaints had no substance and the applicant did not enjoy an absolute right to free legal representation or language assistance at all stages of the proceedings. The applicant in any event also had interpretation services provided during the Board’s Hearing and he suffered no prejudice as to the lack of legal representation before the Board. The Deputy Judge also considered that his complaints on procedural unfairness had no substance and that the Board’s Decision was without fault. As such, the Deputy Judge considered that his grounds of review were not reasonably arguable and the proposed judicial review had no prospect of success. Accordingly, leave to apply for judicial review was refused.
The Appeal
13. On 28 January 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he alleged that he would face hardships and be killed by his enemies if he returned to his home country. He further alleged that the Board and the Director did not scrutinise his claim properly and that the lack of credible source of information had caused them to make groundless speculations.
Discussion
14. The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
15. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.
16. Nowhere in his Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision. As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone.
17. In any event, there is no substance in the applicant’s complaint. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The Board and the Director had considered in detail the materials and representations provided by the applicant as well as the Country of Origin Information before reaching their respective decisions. We have reviewed the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions. We see no error of law or procedure in the decisions.
18. For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.
(Thomas Au)
Justice of Appeal
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(Lisa Wong)
Judge of the Court
of First Instance
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The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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